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Nigerian election jurisprudence creating road blocks for losers to get justice, says Okutepa (SAN)

By Bridget Chiedu Onochie
24 December 2019   |   4:20 am
Congratulations on this questions because it appears that not many Nigerians are seeing the dangers ahead in terms of the effects electoral jurisprudence is going to have on our democracy by 2023.

Jibril S. Okutepa

President Muhammadu Buhari recently at his 77thbirthday assured Nigerians of his readiness to tackle election malpractice by 2023. That statement has been interpreted differently by many Nigerians. An Abuja-based Senior Advocate of Nigeria (SAN), Mr. Jibril S. Okutepa, in an interview with Bridget Chiedu Onochie, also gave his interpretation and went further to suggest possible ways of achieving such laudable goal. He also looked at the country’s election jurisprudence and its implication for future elections, among other issues.

As fallout of March 9 governorship election across the country, virtually all the candidates that lost out approached various election petition tribunals, challenging election results. Does it surprise you that in spite of alleged high level of electoral malpractice, no state election was cancelled by the Supreme Court?
Congratulations on this questions because it appears that not many Nigerians are seeing the dangers ahead in terms of the effects electoral jurisprudence is going to have on our democracy by 2023. The jurisprudence of our election rather than improving to give us justice in our elections appears to be creating more road blocks for ‘losers’ of election to get justice in our courts. It is true that we are having series of judgments coming out of our election petition tribunals, including the Court of Appeal and Supreme Court, the ultimate question should be whether these judgments met the yearnings and aspirations of justice as understood by Nigerians. I think the conclusion most Nigerians have come to is that they have not gotten justice in our electoral jurisprudence. As a lawyer, I am bound by the judgments of these courts but the only thing I can do is to criticize them with a view to seeing that the Lordships at the Court of Appeal, Supreme Court and even at the Election Petition Tribunals will one day have to look at our election jurisprudence beyond principles of law and look at it from the principles of policy, particularly at the Supreme Court, which is the court of law and court of policy.

There was a time in this country that impeachment proceedings were non-justiciable in our courts. You also recall that so many governors were removed from brothels by less number of members of Houses of Assembly in their respective states. It took the intervention of the Supreme Court as a court of policy, to that impeachment rascality to an end. So, I think that time has come for our courts to make a complete departure from any electoral jurisprudence that is constituting obstacles and road blocks for electoral justice in this country.

For instance, there is a principle of law that is currently gaining very difficult and dangerous currency – that if you obtain a public document from Independent National Electoral Commission (INEC) and tender that public document, duly certified, until you call the maker of that documents, the court will not look at it. Section 104 of the Evidence Act for instance, gives opportunity to apply for Certified True Copy of public documents. Under the Act, such document upon payment and upon issuance are presumed to be genuine and the court deems them proved in our laws but now, we are told that when you have a certified true copy of voters register, certified copy of INEC’s Form EC8A series, EC8 B series and all the forms written in English language which is the official language of the court, you are then expected to come to the court to do what is called ‘demonstration’. I do not know how to demonstrate a document that is written in English language order than to say “look, there is no accreditation but look at the voters from polling unit A and polling unit B, which shows that there is no accreditation in line with INEC manual that set out how accreditation is done.”

Another principle of law that is gaining a very dangerous policy is that even when you have bomb shot democracy or gunshot democracy that the deaf and blind can see and hear, and the social media filming and photographing, you still need to call a voter from the poling unit to testify that there was no election. And I ask, what has become of Section 84 of the Evidence Act which allows the use of electronically generated evidence in electoral jurisprudence so long as it complies with set down procedures that the electronic gadgets used must be in good condition, not broken down and have no possibility of interruption, corruption or manipulation? What stops the court from looking at these films that have records of various polling units and use one witness to tender them for the court to look at them visually?

There is also a provision in Section 151 of the Electoral Act, which says that before you file your petition, when you file your petition or before you defend your petition, you can go to the Election Petition Tribunal for an order to enable you inspect copies of INEC election materials for purposes of instituting, maintaining and defending petition. We are now told that once a tribunal gives you an order and that order is obeyed, you set up a team to look at INEC Electoral forms. But if that team discovers manipulations and the report is brought before the court, such report is not admissible because according to some of the judgments, those documents were made when litigations where pending. Thus, they do not take into account, the exceptional circumstance of Section 151 of the Electoral Act which enables you to obtain an order and check documents for the purposes of instituting, maintaining or defending petition. Those are the things I think that if we don’t sit down as a legal profession made up of Bar and Bench to look at and reverse them, one day, we will come to a road block and we would be returning to the theory of ‘Might is Right’. Personally, I am surprised that we still indulge in this form of anachronistic legal principles that are not advancing the course of justice in our courts. It keeps losing parties frustrated and in excruciating pains even when you know that democracy was raped in that circumstance.

There is another principle I think we should look at and that is the principle of presumption of regularities of pieces of documents from INEC. That principle is good in a country that respects law and due process, where institutions are independent in the true sense of the word, where nationalistic instincts operate and where people do not do things for primordial partisan interest. However, in a country like Nigeria where institutions appear to be owing allegiance, not to the constitution but to the temporal occupant to the offices of governor, president and even local government chairman or counselor, then, we must begin to interrogate the presumption of regularities of official documents, particularly coming from INEC because there is a provision in our law that empowers INEC not to announce result of election in a violent prone places. But as you can see today, INEC announces election result in areas where violence is perpetuated by political actors in favour of one or two political parties rather than exercising the independent judgment of thought and refuse to announce result until right thing is done. My submission therefore as an experienced election petition person is that INEC is simply INEC by name. I do not see INEC by fact because if you are talking about independence, I don’t see INEC as independent enough to do a referee in a political competition, not because the constitution did not envisage that it should be independence but like one of the presidents of this country said, ‘even if you bring an Angel to conduct election in Nigeria, possibility exist for political class to corrupt the Angel for purposes of manipulation.

So, for me, we must begin to interrogate the question of presumption of regularities because in most of the election petitions, INEC which is at the centre of the petition will not come to testify in defense of the allegations brought against it. It will quickly come to say “I enjoy presumption of regularities”, meaning that whatever result is issued by INEC is correct. That presumption must be interrogated. I urge our courts to take judicial notice of that. After all, Supreme Court has taken judicial notice of rumour in this country. In a suit between Chief Abraham Adesanya and the Federal Republic of Nigeria, the Supreme Court took judicial notice that rumours have become the pass time of workers at construction sites and market women and men and therefore, anyone that is being led by rumour that his right is being infringed upon should not be stopped from coming to court. I also urge the Supreme Court to take judicial notice of the fact that INEC uses ad-hoc staff who are mostly Corp members, and that the political class do interfere with witnesses. Time has come for us to sit down and fashion election petition jurisprudence that will meet the justice of the matter. So, presuming election result as regular and sacrosanct as if it comes from Angels should be looked into. In this country, the will of the people no longer matter and performances are no longer the yardstick for seeking political offices. Those who have completely failed in governance meander their ways and lord it over the people and nothing happens because those who are beneficiaries of those in power will always take ownership of the wrong. In most cases, you see security agencies not owing allegiance to the constitution but to the person who butters their bread. And you will not blame them because the excruciating pains under which they work is like putting food before an hungry man and ask him to guide the food without eating it. Definitely, he will pilfer the food and once that is done, he is violating the law but he is obeying the law of nature because he needs to feed himself and the family.

I was an apostle of President Buhari when he said he wanted to fight corruption but corruption has permeated every strata of our society. When we talk about fighting corruption, we must go down to having institutions that are independent and there must be the police that police the police of the institutions of corruption. But the question is, ‘who police the police? It appears that the executive arm of government is infusing timidity into our judiciary and once timidity is infused into our judges, then, anarchy looms and you are saying goodbye to rule of law and democracy. Once there is no rule of law and people cannot express their feelings or hold government accountable without being slaughtered, people will be afraid to hold government accountable. To me, our democracy might be in danger unless we agree that we want to practice democracy. If we opt for democracy, then, we must be ready to abide by its basic tenet which is freedom, accountability and respect for the rule of law. Others are judicial independence and undiluted judgment of courts. Once you perceive injustice in judgment, the judicial system cannot be safe. There are no non-graduates heading the judiciary and so, both the bar and the bench have defined qualifications. We are not school drop-outs managing to head a branch of government called the judiciary. We also have good code of conducts which states that we must not give an appearance in improprieties. As judicial officers, our conducts must be above board in our dealings with the court.

What in your view, are likely consequences of perceived injustice in election jurisprudence, first to political office seekers and then, to the electorates?
Such development has both national and international implications. For instance, if the international community perceives as they are likely to, that you cannot get justice in our court, most likely, you will not have investment in the country. Also, Nigerians are resigning to fate. Most Nigerians are not likely to want to participate in politics or even go out and cast their votes. The reason is that if one does not belong to the party in power and he has dissenting views on national issues, he might be killed as being witnessed in the 21st century Nigeria. INEC is like ‘King does no wrong’ and as such, whatever it does is presumed correct. My worry is that for 2023, the argument is not going to be about the development of Nigeria but about which section of the country will produce the president and which section of the state will produce the governor. It is not about welfare and social upliftment of Nigerian people or about the education sector or who has an idea of running an efficient and effective university. There is already voter’s apathy and unfortunately, no political party is engaging in political education. In societies where government works, political parties play crucial roles in political education and enlightenment. So, if the government in power installs who it wants to install irrespective of the choice of people, there is going to be voters’ apathy in future.

What do you make of Mr. President’s recent statement that he will ensure free and fair elections in 2023?
When President Muhammadu Buhari at 77 told Nigerians that he is not going to allow election malpractices in in 2023, that to me lawyer is an acknowledgment by the President that there are electoral malpractices in this country and he has acknowledged it at that highest level of governance. The only thing that gets me worried is why 2023 and not now.

Do you think it is possible to achieve free and fair election in Nigeria? If you are to advise Mr. President on steps towards that direction, what would you suggest?
It can only be achieved if he comes out now and let Nigerians know that he is not in support of the democratic rape that we have experienced so far even under his nose. It can be done if the legal profession made up of the bar and the bench come together and put the political class in the right perspective. It can be achieved if we begin to hold people accountable for their misconducts. If there is electoral infractions either by INEC or any of its staff or by governors, President Buhari must allow the state apparatus undiluted access to effecting arrest and prosecution of such people who are bent on derailing our democracy. Also, our electoral expenditure must be scrutinized. But it would be difficult to achieve when government money is being used to fund elections and there is no level playing field for political actors. Government must stop empowering those in power with money to scuttle democracy. What is the reason for releasing money few days to the election and nobody is accountable for the money. If Buhari want to have his name written in gold, he needs to put more sparks in governance and must not condone those who use his name to engage in unwholesome conducts that are not in the interest of democratic growth. His government must encourage the judiciary and encourage its independence. The judiciary itself must insist that only men and women of integrity are appointed to the bench, not lily liver or those with skeletons in their cupboard. So, for him to actualize that laudable statement he made, he must build the foundation now by punishing those who have engaged themselves in such practices and shake up INEC that he has and look for Nigerians of impeccable characters as INEC officials. If we don’t have people of proven characters in INEC, security agencies and on the bench, that statement will go down in history as a statement that is impossible to be enforced.

How would you access the judiciary in the out-going year?
I see this year as a trying moment for the legal profession. It is a year that for the first time in history, the hallowed court was invaded. This is the year that saw the exit of many judicial officers in controversial circumstances and a year that so many things happened. I wish that 2020 would be better because if we continue the way we are going, the damages that would be done to our national interest would be unquantifiable. I say so because any country that the judiciary is toiled with and the rule of law is ignored, development would be far from it and we would be heading towards the jungle. So, , in terms of what the experience of the judiciary has been, I think this year is excruciating for them. This is a year that the judiciary would have to look before it leaps and it should not be so. But in terms of judicial performance, not minding the excruciating circumstances the judiciary finds itself, judges have done creditably well and as judicial officers, they run by judicial precedence. I am only calling on them to take a look at the precedents in 2023 and depart from them when necessary for the attainment of justice and for the purpose of judgment delivery. Let there be justice in judgment delivery and let the people know that justice has been served no matter whose ox is gauged.

There have been controversies over the agitation to appoint senior lawyers in private practice straight to the Supreme Court? Do you see any merit in that move?
I read recently that the Chief Justice of Nigeria is not in support of that idea and I do not know why that is so. I think we need mixture of people from private practice, the academia and from the bench on the Supreme Court bench. The reason is that the Supreme Court of Nigeria is both court of law and court of policy. I do not see why it is difficult for a private lawyer who has practiced in all courts including the Supreme Court to be in Supreme Court bench as it is being said that they will not have the experience. But if we go down memory lane, we have had examples of practicing lawyers who were appointed straight to the Supreme Court bench. Late Dr. Augustine Nnamani (SAN) was moved to the Supreme Court. Pick his judgments and current judgments of those who climbed the ladder and see whether he disappointed the bar while on the Supreme Court bench. Chief Justice Chukwudifu Oputa also went straight from the high court to the Supreme Court and you can also read his judgments. There are many credible legal practitioners both as SANs and senior members of the bar who can go to the Supreme Court bench or Court of Appeal bench and give the much needed push and impetus to change the course of events. Until we have people with such radical postures on the bench, we may expose ourselves to self-intimidation. If you look at judgments of our old courts, you see some judges that were philosophers. I will also advocate that some chief judges who are good and of impeccable character in the lower courts should be moved to the Supreme Court. Again, I have asked before why we should have only 21 Supreme Court justices in Nigeria. I want to suggest that we increase the number of justices of Supreme Court to the equivalent of Senators. Let there be three justices of Supreme Court from each state as we have three Senators from each state of the federation. Let those justices also collect the same emolument as each senator and be given the opportunity of the materials the senators are having for the purposes of doing their judicial works.

Each state should have equal number of justices representing them in the Court of Appeal as they have in the number of members representing them in the House of Representatives. Going back to the states, each state must also have the equivalent of the number of representatives it has in the House of Assembly in the State High Courts. It is in our constitution that each state must have a minister but we have only 21 justices prescribed for the judiciary at the Supreme Court. Are we being told that the judicial arm of government is not equal partner in the process of administration of our country? Time has come for us to interrogate some lopsided arrangements. I think the political class has emasculated justice. Today, the only business that is viable is politics and the law makers have cleverly taken over the judiciary. For instance, Section 285 of the Constitution has been amended to give time frame for political cases. For instance, election petition, 180 days; pre-election matter, 180 days; appeal, 60 days to the Court of Appeal and 60 days to the Supreme Court. Lawyers have also been constrained to work within the time frame given to us. Filing of brief in the Supreme Court for appellant is 10 days, respondents five days and replying of briefs, three days whereas in normal commercial cases, there was no time limit. Amendment to the constitution ought to be total.

They would have increased the number of judges and their budget so that they can perform their roles as the watchdog of the society and as the last hope for the common and the uncommon man. But the political class has gagged the judiciary in such a way that they will not look at other cases; they have made laws to control the judiciary and overwork them.

Quote 1
“It is true that we are having series of judgments coming out of our election petition tribunals, including the Court of Appeal and Supreme Court, the ultimate question should be whether these judgments met the yearnings and aspirations of justice as understood by Nigerians.”“We increase the number of justices of Supreme Court to the equivalent of Senators”

Quote 2
“I want to suggest that we increase the number of justices of Supreme Court to the equivalent of Senators. Let there be three justices of Supreme Court from each state as we have three Senators from each state of the federation. Let those justices also collect the same emolument as each senator and be given the opportunity of the materials the senators are having for the purposes of doing their judicial works.”